Close v. Fields

• Decision Date: 01 January 1855
• Citation: 13 Tex. 623
• Parties: HIRAM CLOSE v. WILLIAM FIELDS.
• Court: Texas Supreme Court

13 Tex. 623

HIRAM CLOSE

v.WILLIAM FIELDS.

Supreme Court of Texas.

1855.

Appeal from Galveston. For former reports of this case see 2 Tex. R., 232, and 9 Id., 422. On the last trial the defendant requested the court to instruct the jury as follows:

1st. That the possession by the defendant of the draft of four hundred dollars given in evidence by him is prima facie evidence of the payment of the same by him, and raises a presumption in his favor of that fact, which, if not rebutted, will be taken as true. 2d. That the claim of the plaintiff as set forth in the pleadings is not such a claim as will bear interest under the laws of this State.

These instructions were “refused as asked by the defendant, and the court charged the jury as follows:”

1st. The possession by the defendant of the draft for four hundred dollars, given in as evidence in this case, is prima facie evidence that it was paid by him; but if the jury believe from the evidence that suspicion was thrown upon such possession, and if they also believe that the defendant has failed to prove when and to whom he paid said draft, these circumstances may be taken into consideration by the jury to rebut such presumption of payment.

2d. The plaintiff and defendant are respectively entitled to damages by way of interest on their claims at the rate of eight per cent. per annum.

The verdict of the jury was for a certain amount as principal and “interest at eight per cent. per annum” thereon, amounting to, &c.

Jones & Ballinger, for appellant.

Sherwood & Goddard, for appellee.

LIPSCOMB, J.

This is the third time this case has been brought before us by the appellant. In the two former cases the judgment was reversed and remanded on the ground that the judge had erred in charging the law to the jury.

In this case we have discovered no error on the part of the court in giving the law of the case in charge to the jury, except on the question of interest.

We believe that but two questions can be raised upon the record: Is the evidence sufficient to support the verdict? and secondly, Was it competent for the jury to give interest, by any name, on the sum of the principal found to be due?

The difficulty, and the only one the plaintiff had to encounter in making out his case, was to rebut the presumption raised by his draft drawn on the appellant, and produced by him on the trial as evidence that it had been paid. The presumption of law under such circumstances is, that the draft had been paid by the drawee. But this presumption may be rebutted. We believe that the evidence on the last trial was sufficient to rebut the presumption and justify the jury in finding that it had not been paid, and that the drawer had never received anything from it. At any rate, there is not in this case such a finding without evidence, or against evidence, as to justify a reversal of the judgment.

The court charged the jury that the plaintiff and the defendant are respectively entitled to damages by way of interest on their claims at the rate of eight per cent. per annum. This charge is clearly not sustainable, if it is to be based for its support on our statute to regulate interest. The second section of that act (Hart. Dig., art. 1607,) provides “that on all written contracts ascertaining the sum due, when no specific premium of rate of interest is expressed, interest shall be taken, recovered, and allowed at the rate of eight per centum per annum, from and after the said sum is due and payable.” This action is not founded on a written contract ascertaining the amount due, but it is to recover money collected by the defendant as the agent of the plaintiff, and for his use, and if interest can be recovered at all in such cases, it is not eo nomine, but as damages; and in such cases, when damages should or might be allowed by the jury, the legal rate of interest is the safest criterion or standard of damages. (See Anderson v. Duffield, 8 Tex. R., 237.)

The doctrine as to the allowance of damages by way of interest on...